Judgment:
P.G. Agarwal, J.
1. Heard the learned counsel for the appellant and the learned P.P.
2. This appeal is directed against the judgment and Order dated 7.11.1997 passed by the Sessions Judge, Tinsukia, in Sessions Case No. 117(T) of 1995 (G.R. Case No. 670/95) whereby the accused appellant was convicted under Section 302 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 5000 in default further imprisonment for two years.
3. The appellant before us Maneswar Mali and the deceased Bamlu Chaura were working as ploughmen in the house of the complainant Umesh Bora of Bokapathar Gaon under Digboi Police Station. They were provided with a room where they were staying together and they were provided free fooding by the employer. The incident took place on 24.5.1995 around 7 P.M. While the deceased Bamlu was taking rest in the room, the accused appellant Maneswar Mali returned back home with the cattle and asked Bamlu to help him out but the latter refused. Thereafter, Manswar after completion of his work and after taking his food entered into the room and after some time the employer heard some hulla and came out of his own room and saw accused Maneswar coming out of the house with a dao in his hand and saw the deceased Bamlu lying on the bed with cut injury on the neck. The villagers were informed and thereafter the FIR (Ext.6) was lodged.
P.W.-7 is Dr. Rituraj Chaliha who held the autopsy over the dead body and found the following injury on the person of the deceased :
'Injuries. - (1) A clean cut incised wound present in the lower third of the neck on the left side extending to 2 cm. on the right side measuring 6 x 2 cm. Nerves, blood vessels, musclea, treaches, oesophagus were all cut and the injury extended to cervical vertebrae. All the components were cut clearly.'
In the opinion of the doctor, the death of the deceased was due to shock and haemorrhage as a result of the injuries sustained. The injuries were ante-mortem and homicidal in nature being caused by heavy sharp cutting weapon.
4. PWs-1, 2, 4 and 5 are the other independent witnesses who came to the place of occurrence on being informed about the incident and they found the dead body in the room which is under the occupation of the deceased. Lajanti Borali (P.W.-2) and Hemakanta Borah (P.W.-6) are the wife and son of the informant Umesh Bora (P.W.-8). In this case, we find that there is no eye witness to the occurrence. P.W.-8 is the first person who arrived at the place of occurrence on haring hulla and he saw the accused appellant coming out of the room with a dao in his hand and on being questioned, the accused told him that he was kicked by the deceased Bamlu. Thereafter P.W.-8 entered into the room and saw the dead body with cut injury. P.W.-6 came out of the house on hearing hullah and he peeped through the window and saw the accused appellant running away with a dao in his hand.
5. In view of the oral and medical evidence on record, we find that the homicidal death of the deceased has been well established. The prosecution case rests on the circumstantial evidence and the circumstances which have been established may be enumerated below :
(1) The accused and the deceased used to reside together in one room.
(2) At the relevant time there was only one person in that room.
(3) P.W.-8 saw the accused appellant coming out of the room with a dao in his hand soon after the incident and after entering into the room he saw the deceased with bleeding injury on the neck.
(4) There was an altercation between the accused and the deceased which is prior to the incident and the deceased was alive at that time.
(5) P.W.-6 saw the accused running away with a dao in his hand.
(6) The accused took shelter in the pump house of the employer wherefrom he was apprehended.
(7) The weapon of assault was recovered from his possession.
6. The medical evidence on record supports the prosecution case regarding causing of the injury with a sharp cutting weapon. We find that the above circumstances have been established by the prosecution by reliable and cogent evidence on record as required under the law. Considering the ratio of law laid down regarding basing conviction on the circumstantial evidence, we find that the said circumstances have been established by the prosecution leading to only one conclusion that it was the accused alone who assaulted the deceased and there was only one person besides the deceased in the room and he was seen coming out of the room with the weapon of assault by P.W.-8 and immediately thereafter P.W.-8 entered into the room. He saw the deceased with cut injury on the neck. There was none else in the room and thus prior to the incident the deceased was hell and heart. The circumstances enumerated above which are beyond probable hypothesis point out the guilt of the accused and the latter failed to explain any of the above circumstances. In view of the materials/evidence on record and considering the nature of the injury the trial court held that accused had knowledge/intention that the act would cause death and the act comes under the category of Section 300, IPC. The deceased and the accused were fellow workers working under the same Master and resided in the same room. On the date of the incident, the deceased was taking rest and the accused sought the help from the deceased which the latter refused and thereafter there was some altercation between the accused and the deceased. The accused claimed that he was kicked by the deceased. We find no reason to disbelieve the above statement of the accused but the further assault on the deceased by the accused can not be said to be a fabricated one. The accused was a young boy of 18 years at the relevant time as seen from the order sheet of the Magistrate. He was arrested soon after the incident. The learned counsel for the appellant has submitted that in the spur of the moment the accused picked up a dao and gave the fatal blow on the deceased causing the death. There is no dispute that the blow fell on the vital organ of the body. Hence, it can be said that the accused had no intention to kill the deceased or this is not a case of pre-planned murder and it amounts to culpable homicide not amounting to murder and as such the conviction is altered to Section 304 Part-I, IPC.
7. In this case, we find that since the date of arrest, that is, 26.5.95, the accused person is in the jail custody and by now the accused has undergone almost eight years of imprisonment. We, therefore, sentence the accused appellant to the period of imprisonment already undergone by the accused appellant and he shall be released from the jail custody, if not wanted in any other case.
8. The appeal stands disposed of accordingly. Send a copy of this order to the Superintendent, District Jail, Dibrugarh. Send down the lower court records to the Sessions Judge, Tinsukia.